Monday, September 8, 2014

"Come Back with a Warrant."

Recently, in recognition of my routine contribution, the Electronic Frontier Foundation (EFF) sent me a little sheet of stickers highlighting their areas of interest and action.  Since advocacy of the Fourth Amendment to the US Constitution is one of my pursuits, I particularly liked the one that said "Come Back with a Warrant."  I inferred that, as good custodians of the private information of others, when asked for that information by government, our default response should be "Come back with a warrant."

As one who has had occasion to draft rules and regulations, if not law, I have always stood in awe of those who crafted our Constituion.  It is a model of brevity, clarity, and balance.  While tortured by events and progress, it has served us well.  Not only is the Fourth Amendment not an exception to this observation, it is an example of it.  Having recently thrown off the yolk of tyranny, the Authors were exquisitely sensitive to the potential for abuse of the power of the state.  In the Fourth Amendment the Authors sought to place a limit on the magisterial police powers of their awesome creature.

They stipulated that the people have a right to be secure in their "persons, houses, papers, and effects" from "searches and seizures."  In consideration of police necessity, the Authors qualified the searches and seizures that they were addressing as "unreasonable," leaving open the possibility of reasonable ones, and to specifically include those where the state had a "warrant" of a specific character.

In recent times, in response to threats real and imagined, the state, congress, courts, and executive, have dramatically limited the right of the people to be secure in "persons, houses, papers, and effects."  Congress has passed laws, such as the USA Patriot Act, granting massive exceptions to the requirements for warrants in the name of "counter-terrorism."  Secret courts have permitted seizures so massive as to defy the wildest definitions of reasonable.  The Executive has engaged in secret programs of "warrantless surveillance" and officially lied to the American people about their existence.  They have systematically parsed every word in the Amendment, specifically including "unreasonable," "seizure," "papers," and even "their" so as to eviscerate the protection that the Amendment was intended to afford.

For example, It is hard to imagine a definition of seizure that does not include "taking from another under force of law."  However, for their own convenience this administration, Departments of Defense and Justice, secretly agreed among themselves to a definition that such an act did not constitute seizure as long as one promised not to look at what one had "taken."  Having gotten a secret court to agree to this definition, the act was now not only "legal" but also, at least by this arguable definition, constitutional.  Such "weasel wording" might be laughable in another context.

So, where should we take our stand?  I propose that we stand with the EFF, that we adopt enterprise policy that, at least by default, we expect a warrant.  We should not wait until we are served with a National Security Letter, which may even say that we may not consult counsel, but we should proactively adopt and direct counsel to implement a policy that we expect a warrant and will resist deficient orders.

I am willing to grant the government access to almost anything for which they have a warrant.  Some even say I have given up.  However, even a capricious warrant offers us fundamental protections.  First, unlike some other orders, it is never unilateral.  Two people, usually with different motives, must cooperate before there can be a warrant.  An investigator must at least have the consent of a magistrate.

Second, a warrant requires probable cause, not merely "articulable suspicion."  It requires that an investigator not only present the court with "probable cause" but do so under oath, subject to penalties for perjury.  The investigator may not simply make an assertion.

Finally, while it may be broad, a warrant must be limited in its scope.  The Amendment requires specify the "place to be searched, and the persons or things to be seized."  As the custodians of the personal data of others, we should at least assert that the warrant should specify the data to be searched, the arguments to be used and the functions that are responsive.  We should be prepared to challenge warrants that we believe to be overly broad but even if we fail, the specifications will be a matter of record.

The Authors of the Amendment gave state the, admittedly carefully limited, warrant as an exception to the right of the people to be secure from searches and seizures.  Even those who do not agree with me that they should be required, have to concede that they are just not that hard to get. Let's expect them to bring one.

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